Inheritance of the guaranteed obligation under a continuous guarantee agreement

The guarantee of the obligation due to a continuous transaction without setting the limit of the liability for guarantee and the guarantee period shall be deemed to be terminated as a matter of course by the death of the guarantor, and the status of the guarantor shall not be deemed to be succeeded to by the inheritor unless there are special circumstances.

Article 1005 of the Civil Act

Samsung Electronic Company

Defendant 1 and eight others

1. Defendant 1 and 2 shall jointly and severally pay to the Plaintiff the amount of KRW 200,600,850,000 and the amount at the rate of twenty-five percent per annum from October 3, 1984 to the full payment date.

2. The plaintiff's claims against the defendant 3, 4, 5, 6, 7, 8, and 9 are all dismissed.

3. The part arising between the plaintiff and the defendant 1 and 2 shall be borne by the above defendants, and the part arising between the plaintiff and the remaining defendants shall be borne by the plaintiff.

4. Paragraph 1 can be provisionally executed.

The plaintiff sought a judgment as to the defendant 1 and 2, and jointly with the defendant 1 and 2 as to the remaining defendants, defendant 3 and 4 as to each of them, and the defendant 5 and 9 as to each of them, 7,715,417 won, defendant 6, 7, and 8 as to each of them, 30,861,69 won, and 20 percent per annum from the day following the delivery of the copy of the complaint of this case to the day of full payment.

The costs of lawsuit are assessed against the defendants and a declaration of provisional execution.

1. The claims against the defendant 1 and 2 are examined.

The plaintiff is the cause of the claim. Defendant 1 entered into an agency contract for the sale of the electronic equipment produced by the plaintiff between the plaintiff and the plaintiff on March 10, 1980, and Defendant 2 jointly and severally guaranteed the obligation owed by Defendant 1 to the plaintiff due to this agency contract, and received the above electronic equipment on credit from January 1, 1984, and the remainder of the credit amount is KRW 200,600,859. The defendants asserted that the defendant was summoned due to service by public notice and did not appear on the date of pleading and did not clearly dispute the plaintiff's assertion because they did not submit the reply and other preparatory documents.

2. We examine the claims filed against the defendant 3, 4, 5, 6, 7, 8, and 9.

On March 10, 1980, Defendant 1 entered into an agency contract with the Plaintiff for continuous supply and sale of the electronic equipment produced by the Plaintiff. The deceased Nonparty jointly and severally guaranteed all obligations arising out of the agency contract with the said Plaintiff. The Nonparty died on November 12, 1982 and succeeded jointly to his property by Defendant 3, 4, 5, 6, 7, 8, 9, etc., and there is no dispute between the parties, and considering the aforementioned agency contract concluded between the Plaintiff and Defendant 1 on March 10, 1980, based on the evidence No. 1 (agency Contract), witness Kim Young-hun's testimony and oral argument, which were concluded between the Plaintiff and Defendant 1 for one year, but the contract renewal was automatically extended unless the contract renewal notice is given, and there is no counter-proof otherwise. The Plaintiff asserts that the remaining agency price of the electronic equipment has been supplied from the Plaintiff to the Plaintiff on January 12, 1984 to the end of 2008.

As to this, the above defendants alleged first that the deceased non-party terminated the above joint and several surety contract on December 15, 1981. However, since the above joint and several surety contract and the mortgage contract are separate, it is difficult to view that the non-party's above joint and several surety contract were terminated at that time on the ground that the non-party's testimony of 5 Eul evidence and witness 1-3 (written copy of each evidence) without dispute over the establishment and testimony of Kim Young-hun, in full view of the above joint and several surety contract as well as the above joint and several surety contract and the testimony of 1-3 (written copy of each evidence) evidence and Kim Young-hun, it is difficult to view that the non-party's above joint and several surety contract were terminated at that time on December 15, 1981.

Secondly, the above Defendants asserted that the above joint and several liability contract was terminated automatically on November 12, 1982 by the non-party's death. Thus, as seen above, the limit of the liability for guarantee as well as the guarantee of the obligation arising from continuous transactions that do not support by setting a period of time should be naturally terminated upon the death of the guarantor, barring special circumstances. Although the status of the guarantor cannot be seen to be succeeded to the heir, the obligation that was already incurred before the death of the guarantor should be viewed to be succeeded to the heir.

Therefore, since the liability to guarantee the credit payment that Defendant 1 had borne by the Nonparty before his death was succeeded to the above Defendants, the inheritor, and thus, the liability to guarantee the credit payment that Defendant 1 had borne by the Plaintiff is examined, as a result of the witness Kim Young-hun’s testimony, and as a whole taking into account the following: (a) the evidence No. 9-1, No. 2, No. 10-1, and No. 2, No. 10-2, and the witness’s testimony and oral argument, Defendant 1 may be recognized as having been liable to guarantee the credit payment amount that Defendant 1 had borne by the Plaintiff as of November 1, 1982 due to continuous transactions such as the above recognition, and the Nonparty’s heir is liable to guarantee the above amount unless there is any counter-proof, barring any special circumstance.

However, the above Defendants asserted to the effect that Defendant 1, the principal debtor, had already repaid the above debt, and therefore, according to the evidence revealed above, the above transaction between the Plaintiff and Defendant 1 had continued to receive electronic equipment from the Plaintiff and continued to pay the goods in a way of coming from a continuous payment. In principle, the money deposited by Defendant 1 to the Plaintiff was continuously appropriated in a long term credit payment obligation. However, even if the amount was paid directly by the above Defendant from the end of December to the end of July 1983 to the end of July 1983, 142,118,000 won exceeded the amount of KRW 126,498,00,000 at the time of the Non-Party’s guarantee, and since there was no counter-proof evidence, the above Defendants’ obligation to the Plaintiff 1, the principal debtor, is extinguished.

3. Accordingly, Defendant 1 and 2 are jointly and severally liable to pay to the Plaintiff the damages for delay at the rate of 25% per annum from September 30, 1984 to September 30, 1984 as to Defendant 1, who is obvious in the record that they would benefit from the delivery of a copy of the complaint of this case, as sought by the Plaintiff, to Defendant 1 and 2. Accordingly, the Plaintiff’s claims against Defendant 1, and 2, who seek damages for delay, shall be accepted on the ground that their guaranteed liability becomes all extinguished as seen above. Thus, they are clearly dismissed, and they are subject to Articles 89 and 93 of the Civil Procedure Act, and Article 6(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., and Article 6(1) of the Act on Special Cases Concerning the Promotion, etc. of Provisional Execution.

Judge Lee Yong-hun (Presiding Judge)